1. Insurance_uninsured motorist_suit defended in name of motorist_presence during
jury selection
The trial court did not err in an uninsured motorist action by introducing to the jury the
police officer in whose name the suit was defended after the officer asserted immunity and was
dismissed from the suit. Although plaintiff contended that the jury might hesitate to award
damages against a police officer, the officer was driving the vehicle that struck plaintiff, the
insurance company was defending in his name, and the trial judge carefully limited the officer's
involvement.
2. Appeal and Error_constitutional objections_not raised at trial
Constitutional objections that were not raised at trial were not preserved for appeal.
3. Evidence_medical records_not used or relied upon by experts_excluded
The trial court did not err in an automobile accident case by excluding medical records
from doctors who did not testify and which were not relied upon by those who did (one doctor
testified that plaintiff brought these records with her, but did not testify that he relied upon them).
The court admitted records produced by or relied upon by testifying experts, records from
treatments to which plaintiff was referred by the testifying experts, and records that were
otherwise admissible.
4. Evidence_medical condition--plaintiff's testimony_not competent
A negligence plaintiff's testimony about her medical condition, Reflex Sympathetic
Dystrophy (RSD), was properly disallowed because the diagnosis is complicated and
controversial and plaintiff is not competent to testify about the nature of the condition, the
necessity of particular treatments, the reasonableness of associated costs, or any connection
between the alleged negligence and her condition. She was allowed to testify about her pain and
suffering, her treatment and therapy, and how her injury affected her life.
5. Appeal and Error; Insurance_insurance defense in motorist's name--constitutional
issue_not raised at trial_upheld previously
The constitutionality of statutes allowing an uninsured motorist's carrier to defend in the
name of the uninsured motorist was not raised at trial and therefore was not properly before the
Court of Appeals. Moreover, these statutory provisions have been challenged and upheld in the
past.
6. Damages_negligence_one dollar_supported by evidence
A jury verdict of $1 in a negligence action was adequate where there were no motions
following the return of the verdict and the jury could reasonably have found on the evidence that
plaintiff failed to show that her injuries were proximately caused by this accident.
Carmen Daniels-Leslie, pro se plaintiff - appellant.
Hill, Evans, Duncan, Jordan & Beatty, P.L.L.C., by Polly D.
Sizemore, for unnamed defendant-appellee.
STEELMAN, Judge.
Plaintiff filed a complaint on or about 15 December 1999 in
the Superior Court of Mecklenburg County seeking damages for
personal injuries alleged to have been sustained in an automobile
accident that occurred on 18 December 1996. The accident involved
James Hetrick (Hetrick), an officer working with the Charlotte
Police Department, who was on duty at that time. Hetrick asserted
governmental immunity and was dismissed from the lawsuit. The
action continued against an unnamed defendant, plaintiff's
insurance carrier, Shelby Insurance Co. (Shelby), based upon
uninsured motorist's coverage. Shelby elected to defend in the
name of Hetrick. The case came to trial on 30 September 2002. The
jury found plaintiff was injured by the negligence of Hetrick, and
awarded her $1.00 in damages. Plaintiff filed notice of appeal on
1 November 2002. Plaintiff was represented at trial by counsel,
but appeals pro se. Further relevant facts will be discussed in
the context of our review of plaintiff's assignments of error.
[1] In plaintiff's first assignment of error she argues the
trial court erred by allowing Hetrick to be presented to the juryduring jury selection and identified as the named defendant. We
disagree.
In cases where the alleged tortfeasor is dismissed from the
action based upon governmental immunity it is appropriate for the
plaintiff to proceed against her own uninsured motorist's coverage.
Williams v. Holsclaw, 128 N.C. App. 205, 495 S.E.2d 166 (1998).
N.C. Gen. Stat. § 20-279.21(b)(3)a (2004) provides:
The insurer, upon being served as herein
provided, shall be a party to the action
between the insured and the uninsured motorist
though not named in the caption of the
pleadings and may defend the suit in the name
of the uninsured motorist or in its own name.
“It is manifest ... that despite the contractual relation between
plaintiff insured and defendant insurer, this action is actually
one for the tort allegedly committed by the uninsured motorist. Any
defense available to the uninsured tort-feasor should be available
to the insurer.” Brown v. Lumbermens Mut. Casualty Co., 285 N.C.
313, 319, 204 S.E.2d 829, 834 (1974). In the instant case, Shelby
elected to defend the action in the name of the uninsured motorist,
Hetrick, rather than in its own name.
Hetrick was subpoenaed by both plaintiff and Shelby to appear
and testify as a witness in the case. Neither party called Hetrick
to testify. Hetrick was present in the courtroom at the
commencement of jury selection. He was seated in the back row of
the courtroom, and at no time was seated at the defense table with
counsel for Shelby. The Court introduced the parties to the jury
pool, and stated: “The named defendant, in this matter, is Mr.
James Hetrick, who is seated on the back row. Any of you know or
recognize Mr. Hetrick? He's in the police uniform, in the back.” “Any of you ever had any dealings with Mr. Hetrick, in his role as
a police officer?”
Plaintiff contends that the introduction of Hetrick to the
jury pool was prejudicial to her because it led the jurors to
believe Hetrick was the defendant, and that jurors might be
reticent to award damages against a police officer.
The uncontroverted facts in this case were that Officer
Hetrick was the operator of the vehicle that struck plaintiff's
automobile. Plaintiff repeatedly identified Hetrick as a police
officer in her direct testimony. The trial judge carefully limited
Hetrick's involvement in the trial to appearing for the jury
selection. In light of the fact that Shelby was defending this
action in the name of Hetrick, it was not error for the trial court
to introduce Hetrick to the jury venire and to make inquiry as to
whether any juror had prior dealings with Hetrick.
[2] Plaintiff further asserts that she was denied due process
and equal protection by the statutory procedure that allowed Shelby
to defend this action in the name of the uninsured motorist,
Hetrick. These constitutional issues were not raised before the
trial court, and under the provisions of North Carolina Rules of
Appellate Procedure Rule 10(b)(1) are not properly preserved for
appeal. In re Change of Name of Crawford to Crawford Trull, 134
N.C. App. 137, 142, 517 S.E.2d 161, 164 (1999). We find
appellant's first assignment of error to be without merit.
[3] In her second assignment of error plaintiff argues the
trial court erred in excluding certain medical records from
evidence. We disagree. In order for medical records to be admitted into evidence, the
plaintiff must meet her burden of showing a causal connection
between defendant's negligence and the injuries complained of.
Gillikin v. Burbage, 263 N.C. 317, 324, 139 S.E.2d 753, 759 (1964).
In cases involving "complicated medical
questions far removed from the ordinary
experience and knowledge of laymen, only an
expert can give competent opinion evidence as
to the cause of the injury."
Holley v. ACTS, Inc., 357 N.C. 228, 232, 581 S.E.2d 750, 753
(2003). The testifying expert has to show that the medical records
at issue reflect treatment of an injury that was causally related
to the alleged negligence of the defendant. He may do this by his
own opinion, or by testifying that he either relied on the
documents for his diagnosis (Chamberlain v. Thames, 131 N.C. App.
705, 717, 509 S.E.2d 443, 450 (1998)) or that the documents reflect
the work of another medical professional to whom the plaintiff was
referred by him. Taylor v. Boger, 289 N.C. 560, 568, 223 S.E.2d
350, 355 (1976). Plaintiff must further show through expert
testimony that the medical treatment she received was “reasonably
necessary for proper treatment of her injuries and that the charges
made were reasonable in amount.” Ward v. Wentz, 20 N.C. App. 229,
232, 201 S.E.2d 194, 197 (1973). It would be error to admit such
evidence if the above conditions were not met. Graves v.
Harrington, 6 N.C. App. 717, 171 S.E.2d 218 (1969).
Plaintiff contends that she suffers from Complex Regional Pain
Syndrome, which is also known as Reflex Sympathetic Dystrophy
(RSD), as a result of the accident. At trial plaintiff offered the
testimony of two medical doctors, Dr. Shin and Dr. Berger. Dr.Shin testified that RSD has “been somewhat controversial in the
past, perhaps, ... but I think consensus nowadays is that it is a
syndrome of pain and discomfort that is frequently mediated by the
sympathetic nervous system, and it shows up after sometimes injury
to the affected limb, and may not have any actually demonstrable
damage to the nerves in that region....” Each doctor gave an
opinion that plaintiff suffered from RSD. Dr. Berger, when asked
if plaintiff's condition was caused by the collision with Hetrick's
vehicle stated: “I don't have an opinion.” Dr. Shin was asked
three times by plaintiff's counsel to express an opinion as to the
cause of plaintiff's condition. He gave the following responses:
“But I mean it is _ it is a relationship, a timed relationship
[between an accident and the onset of RSD]. We don't know enough
of it to say, well causality. I guess we have to be careful with
that.” And, “Okay, I guess _ again, the casualty [sic] is always an
issue, but we see this condition many times after an injury without
definite nerve injury that can be documentable. I think we would
usually link that, so we'll just say [RSD] in association with the
accident or the injury that occurred. So temporally, that would
fit.“ When asked again he replied, ”I think, yeah, you could say
that. It _ that the accident happened and then she developed this
condition.” And finally, “Um-hm _ I think _ I don't know. Yes, in
a way. I mean, it's _ we see this after an accident.”
The testimony of plaintiff's experts revealed that the
diagnosis of RSD is complex, and the plaintiff's diagnosis was
confirmed only after Dr. Berger performed a stellate ganglion
block. This was a condition that required the opinion of an expertwitness to establish causation. Holley, 357 N.C. at 232, 581
S.E.2d at 753.
Plaintiff sought to enter into evidence records of medical
treatments and diagnoses, bills, prescriptions, and letters from
her doctors. The trial court allowed documents into evidence that
were produced by the testifying experts, relied upon by the
testifying experts, or that were otherwise admissible under the
rules of evidence. Records were also allowed in for medical and
physical therapy treatments where the evidence showed one of the
testifying experts referred plaintiff for the treatments.
The excluded records were from visits to Charlotte area
doctors who did not testify. These doctors were available to
plaintiff, but she instructed her attorney not to subpoena them
because she had instituted a medical malpractice suit against one
of them and she believed they might be prejudiced against her. The
only testimony linking any of these documents to the treatment of
plaintiff's RSD (through either reliance upon the documents or
referral) was Dr. Shin's testimony that plaintiff had brought
records with her on her visit. However, there was no testimony by
Dr. Shin that he relied upon these records for his diagnosis, or
any specific mention of what records the plaintiff brought, other
than for a three phase bone scan performed in 1999. Evidence of
the bone scan was admitted at trial. Further, there was no expert
testimony that the treatment and expenses in the excluded records
was necessary for proper treatment of plaintiff's injuries, or
reasonable in cost. For the foregoing reasons we hold the trial court did not err
in excluding certain medical records at trial. We find this
assignment of error to be without merit.
[4] In her third assignment of error, plaintiff contends that
the trial court erred in refusing to allow her to testify about
certain of her medical conditions and treatments. We disagree.
Plaintiff was allowed to testify extensively regarding her
pain and suffering, certain courses of medical treatment, physical
therapy, and how her injuries have affected her life. She was
prohibited from testifying about RSD and any knowledge or opinion
she may have gathered from doctors who did not testify, or from
outside research she may have herself done on the subject.
Plaintiff contends that her injury is “obvious,” and thus expert
testimony is not required. Although some of her symptoms might be
obvious, RSD is a very complex and controversial diagnosis and
plaintiff was not competent to testify as to the nature of the
condition, the necessity of any particular treatment, the
reasonableness of associated costs, or any causal connection
between the alleged negligence of Hetrick and her condition. The
trial court properly sustained Shelby's objection to plaintiff's
testimony. We find this assignment of error to be without merit.
[5] In her fourth assignment of error plaintiff asserts that
the provision of N.C. Gen. Stat. § 20-279.21(b)(3) allowing an
uninsured motorist's carrier to defend an action in the name of the
uninsured motorist is violative of due process and equal
protection, and is therefore unconstitutional. Plaintiff further
contends that this provision violates the provisions of Article I,Section 18 of the North Carolina Constitution which requires that
the courts of this State be open to parties seeking redress for
their injuries.
None of these constitutional issues were raised by plaintiff
in the trial court and are not properly before this Court. N.C. R.
App. P. 10(b)(1), In re Crawford, 134 N.C. App. at 142, 517 S.E.2d
at 164. We note that the provisions of N.C. Gen. Stat. § 20-
279.21(b)(3) and (4) allowing an uninsured motorist's carrier to
defend in the name of the uninsured motorist (instead of its own
name) have been challenged in the past and consistently upheld by
the appellate courts of this State. Church v. Allstate Ins. Co.,
143 N.C. App. 527, 547 S.E.2d 458 (2001), Sellers v. N.C. Farm
Bureau Mut. Ins. Co., 108 N.C. App. 697, 424 S.E.2d 669 (1993).
This Court has reasoned that a “jury would more likely concentrate
on the facts and the law as instructed, rather than the parties,”
when the insurance carrier is allowed to defend in the name of the
tortfeasor alone. Sellers, 108 N.C. App. at 699, 424 S.E.2d. at
670.
[6] In her final assignment of error, plaintiff contends that
the jury's verdict of $1.00 was inadequate, based upon the evidence
presented to the jury. We disagree.
We note that the record in the matter before us is devoid of
any indication that the plaintiff made any motions to the trial
court following the return of the jury's verdict. In the absence
of such motions we have examined the record before us to determine
if there was evidence that would support the jury's damages verdict
in the amount of $1.00. There was no stipulation removing any element of damages from
the consideration of the jury. It was the role of the jury to
weigh the evidence, determine the credibility of the witnesses, the
probative force to be given to their testimony and determine what
the evidence proved or did not prove. It was the province of the
jury to believe any part or none of the evidence. Smith v.
Beasley, 298 N.C. 798, 801, 259 S.E.2d 907, 909 (1979), see also
Anderson v. Hollifield, 345 N.C. 480, 480 S.E.2d 661 (1997).
The evidence in this case showed that immediately following
the accident, plaintiff twice refused offers made by the police to
secure an ambulance for her. She did not seek medical treatment
for her injuries alleged to have been caused by the accident until
two years later. The testimony of plaintiff's expert witnesses, as
set forth above, was at best equivocal concerning whether her
injuries were caused by the accident. The plaintiff had suffered
a number of injuries prior and subsequent to the automobile
accident on 18 December 1996. Thus, the jury in this case could
reasonably have found that the plaintiff failed to meet her burden
of proof of showing that her injuries and expenses were proximately
caused by the negligence of Hetrick. This assignment of error is
without merit.
NO ERROR.
Judges McGEE and CALABRIA concur.
*** Converted from WordPerfect ***